Brady v. Social Security Administration
MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Waverly D. Crenshaw, Jr on 5/31/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
DONAH MARIE BRADY,
) NO. 3:14-cv-1977
) CHIEF JUDGE CRENSHAW
Pending before the Court is Donah Marie Brady’s Motion for Judgment on the
Administrative Record (Doc. No. 15), to which the Social Security Administration (“SSA”) has
responded (Doc. No. 18.)
Plaintiff did not file a reply to the SSA’s response.
consideration of the parties’ briefs and the transcript of the administrative record (Doc. No. 14), 1
and for the reasons set forth below, Plaintiff’s Motion for Judgment will be DENIED and the
decision of the SSA will be AFFIRMED.
Magistrate Judge Referral
In order to ensure the prompt resolution of this matter, the Court will VACATE the
referral to the Magistrate Judge.
Plaintiff filed an application for disability insurance benefits (“DIB”) under Title II of the
Social Security Act on August 15, 2011, 2 alleging disability onset as of June 23, 2011, due to
Referenced hereinafter by “Tr.” followed by the page number found in bolded typeface at the bottom right corner
of the transcript page.
The Act and implementing regulations regarding DIB (contained in Title II of the Act and 20 C.F.R. Part 404 of
the regulations) and Supplemental Security Income (contained in Title XVI of the Act and 20 C.F.R. Part 416 of the
TMJ,3 Bartter Syndrome, 4 and depression. (Tr. 143.) Her claim to benefits was denied at the
initial and reconsideration stages of state agency review. Plaintiff subsequently requested de
novo review of her case by an Administrative Law Judge (“ALJ”). Plaintiff’s case was heard on
May 2, 2013, when Plaintiff appeared with counsel and gave testimony. (Tr. 27-60.) Testimony
was also received from an impartial vocational expert. (Id.) At the conclusion of the hearing,
the matter was taken under advisement until July 26, 2013, when the ALJ issued a written
decision finding Plaintiff not disabled.
That decision contains the following
1. The claimant meets the insured status requirements of the Social Security Act through
December 31, 2015.
2. The claimant has not engaged in substantial gainful activity since June 23, 2011, the
alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: depressive disorder and anxiety
disorder (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that meets
or medically equals the severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1(20 CFR 404.1520(d), 404.1525 and 404.1526).
5. [T]he claimant has the residual functional capacity to perform a full range of work at
all exertional levels but with the following nonexertional limitations: She can
maintain concentration for at least two hours at a time in an eight-hour workday. She
can frequently interact with the general public, coworkers and supervisors; and she
can adapt to infrequent change in the workplace.
regulations) are, substantially identical. Barnhart v. Thomas, 540 U.S. 20, 24 (2003) (noting that the Title II and the
Title XVI definition of “disability” is “verbatim the same” and explaining that “[f]or simplicity sake, we will refer
only to the II provisions, but our analysis applies equally to Title XVI.”) The Court cites to the regulations
Temporomandibular joint and muscle disorders, commonly called “TMJ,” are a group of conditions that cause pain
and dysfunction in the jaw joint and the muscles that control jaw movement. TMJ Disorders, U.S. Department of
Health and Human Services, National Institutes of Health, National Institute of Dental and Craniofacial Research,
https://www.nidcr.nih.gov/oralhealth/Topics/TMJ/TMJDisorders.htm# (last visited 5/11/17).
Bartter syndrome is a group of very similar kidney disorders that cause an imbalance of potassium, sodium,
chloride, and related molecules in the body. Bartter Syndrome, Genetics Home Reference, Lister Hill National
Center for Biomedical Communications, U.S. National Library of Medicine, National Institutes of Health,
Department of Health and Human Services (May 9, 2017) found at https://ghr.nlm.nih.gov/condition/barttersyndrome (last visited 5/11/17).
6. The claimant is capable of performing past relevant work as a mattress finisher. This
work does not require the performance of work-related activities precluded by the
claimant’s residual functional capacity (20 CFR 404.1565).
7. The claimant has not been under a disability, as defined in the Social Security Act,
from June 23, 2011, through the date of this decision (20 CFR 404.1520(1)).
(Tr. 15, 18, 19, 21-22.)
On September 24, 2014, the Appeals Council denied Plaintiff’s request for review of the
ALJ’s decision (Tr. 1–6), thereby rendering that decision the final decision of the SSA. This
civil action was thereafter timely filed, and the court has jurisdiction. 42 U.S.C. ' 405(g). If the
ALJ’s findings are supported by substantial evidence based on the record as a whole, then those
findings are conclusive. Id.
Review of the Record
The ALJ then summarized Plaintiff’s medical records as follows:
The medical evidence of record cites to the claimant’s impairments of Bartters
Syndrome and hypopotassemia. 5 The claimant has a history of being
noncompliant with taking her prescribed medications dating back to 2007 and as
recent as 2010. (Exhibit 2F, pp. 11 and 32). On December 23, 2010, William
Littman, M.D., noted in the assessment section of the treatment record that the
claimant had been noncompliant and she was aware that she needed to take her
pills before her “biggest meal.” (Exhibit 2F, p. 11).
On August 1, 2011, the claimant established care at the health department. Brian
F. Richey, FNP examined the claimant. She had no motor weakness, and her
balance and gait were intact. Neurologically, she was unremarkable. (Exhibit 1l
F, p. 13). Treating records show that the normal range for potassium levels is
between 3.5 -5.2 mmol/L. On August 8, 2011, laboratory results showed her
potassium, serum at 3.9. Laboratory results dated September 13, 2011, revealed
potassium levels of 3.3, which was slightly abnormal on this date. (Exhibit llF, p.
Hypopotassemia, also called hypokalemia, refers to a lower than normal potassium level in [the] bloodstream.
www.mayoclinic.org/symptoms/lowpotassium/basics/definition/sym-20050632 (last visited 5/11/17).
On December 30, 2011, the claimant was admitted to the hospital with persistent
nausea, vomiting, diarrhea, right flank pain, and increasing weakness. Treatment
notes state that her Bartter’s Syndrome had resulted in recurrent hypokalemia,
which was treated with aggressive potassium replacement as an outpatient.
However, she was noted in the emergency department to have a potassium level
of 2.1. On admission, she was ordered to take potassium four times a day.
Medications also included Magnesium, Zocor, and Prozac 40 [mg.]. She received
an infusion of potassium, and two grams of magnesium while at the hospital.
William Littman, M.D., a treating physician, diagnosed the claimant with severe
hypokalemia, gastroenteritis, history of Bartter’s Syndrome, and history of
hypercholesterolemia. She was discharged from the hospital on December 31,
2011 once her potassium levels returned to normal. (Exhibit 1OF, pp. 2-5).
The claimant presented to Michael J. Antanaitis, Certified Physician Assistant
("PA-C") from April 2012 to September 2012 for check-ups and refills of
Her assessment continued to be Bartter’s Syndrome and
hypopotassemia during this treatment period. On September 10, 2012, she
presented to Mr. Antanaitis with complaints of right foot weakness for about three
to four weeks. She reported a diminished ability to dorsiflex her right foot. She
also reported left calf cramping. On physical examination, she exhibited
weakness of right foot dorsiflexion strength. At this time, Mr. Antanaitis
increased the claimant’s intake of potassium to five times a day instead of four.
On April 5, June 4, July 26, and December 17, 2012, the claimant’s balance and
gait were intact. (Exhibit 14F). Laboratory reports revealed that the claimant’s
potassium level consistently stayed within normal range. (Exhibit 14F).
As for the physical opinion evidence, Frank Pennington, M.D., reviewed the
claimant’s file and submitted a consultant analysis on October 7, 2011.
According to Dr. Pennington, the severity of the physical impairments alleged by
the claimant was inconsistent with the objective findings. Dr. Pennington noted
the following impairments: severe hypokalemia, lower extremity weakness,
history of Bartter’s Syndrome with recurrent hypokalemia, hypertension, and
temporomandibular joint disorder. In conclusion, Dr. Pennington found the
physical impairments not severe, singly or combined. (Exhibit 4F).
Marvin Cohn, M.D., reviewed the claimant’s file and submitted a “Report of
Contact” on December 14, 2011. Dr. Cohn did not find additional treatment since
the initial assessment by Dr. Pennington. Dr. Cohn noted that the entire “medical
evidence of record supports improvement in the claimant’s musculoskeletal
symptoms/hypokalemic,” which was expected with compliant potassium
replacement and “no severe or critical exacerbation of hypokalemic muscular
symptoms since 2007.” As a result, Dr. Cohn affirmed the previous assessment
by Dr. Pennington. (Exhibit 7F).
Mr. Antanaitis deemed the claimant able to occasionally lift and/or carry five
pounds, and frequently lift and/or carry two to three pounds. For any given eighthour workday, the claimant could stand/walk for a total of three hours. As for
postural activities, Mr. Antanaitis indicated the claimant could occasionally
balance, kneel, and crawl, but should never climb, stoop, crouch, or bend. The
assessment was based upon the claimant's fatigue and associated hypokalemia.
Mr. Antanaitis noted that he had treated the claimant from August 1, 2011 to May
10, 2013. (Exhibit 13F).
Dr. Littman completed a physical capacity evaluation on December 15, 2011. Dr.
Littman indicated the claimant could occasionally lift 21 to 50 pounds and
frequently lift up to 20 pounds. Dr. Littman determined the claimant could
occasionally carry 21 to 50 pounds, and frequently carry up to 10 pounds. For
any given eight-hour workday, the claimant could stand for three hours, walk for
four hours, and sit for six hours. As for postural limitations, Dr. Littman
determined the claimant should never squat, climb, or stoop. However, she could
frequently bend, crawl, and reach above shoulder level. According to Dr.
Littman, she could withstand moderate exposure to dust and fumes. (Exhibits 9F
and 10F, p. 8 - duplicate).
Overall, the evidence notes the claimant’s potassium levels have been within
normal limits. Her potassium reading was a little below normal on three
occasions, but not by very much. The first instance occurred on September 13,
2011, at 3.3. The second instance for a low potassium reading was on December
30-31, 2011, with levels at 2.1 and 2.6 during her hospital course. More than six
months elapsed before a third, low potassium reading on July 27, 2012, at 3.1,
which was only 0.4 away from being within normal range. Her testimony
(discussed below) concerning functional limitations and extreme fatigue is
inconsistent with the medical evidence. In August 2011, she had no motor
weakness. Her balance and gait are intact throughout the record. As a result, her
testimony of sitting for only one hour and standing for 30 minutes is inconsistent
with the physical examination findings, which provide insight regarding her true
The claimant was admitted to the hospital only once for low potassium since the
alleged onset date of June 23, 2011. In December 2011, she was treated and
discharged from the hospital when her potassium level reached normal limits.
(Exhibit 10F). The treating records contain no evidence that the claimant has
experienced daily fatigue as she has alleged. Treatment records in 2012 showed
she consistently had normal balance and gait, and neurologically intact. (Exhibit
14F). The medical evidence of record also reflects that the claimant has a history
of being noncompliant with taking her potassium. (Exhibit 2F).
In addition, treatment records revealed the claimant has a diagnosis of
chondrocalcinosis 6 degenerative changes in the right knee on June 1, 2009.
(Exhibit 12F). However, the medical records did not show that the claimant
continued to experience ongoing problems with her right knee. Treatment records
revealed the claimant has a normal gait. (Exhibit 14F).
As for the physical opinions, the undersigned gives little weight to the treating
medical provider opinions. Dr. Littman determined the claimant could do a range
of light work at Exhibit 9F. No clinical and/or laboratory findings or physical
examinations by Dr. Littman supported his assessment regarding the standing,
walking, sitting, and postural limitations cited in the physical capacity evaluation
at Exhibit 9F. In addition, Mr. Antanaitis, a certified physician assistant, deemed
the claimant able to perform sedentary work at 13F. These limitations were
overly restrictive based upon the entire medical evidence of record. Furthermore,
Mr. Antanaitis is not an “acceptable medical source” as defined in the
Great weight is given to the opinions of Dr. Pennington and Dr. Cohn, which
stated that the claimant’s physical impairments are not severe. These opinions are
consistent with the medical evidence, which does not support severe physical
limitations of the claimant. (Exhibits 4F and 7F). Dr. Cohn even stated how the
medical evidence supports improvement in the claimant’s musculoskeletal and
hypokalemic muscular symptoms, which was expected with compliant potassium
In sum, the undersigned finds the claimant’s Bartter’s Syndrome, right knee
degenerative joint disease, and hypopotassemia are non-severe impairments,
which is supported by the claimant's normal potassium levels and her
neurologically intact findings on recent physical examinations.
Conclusions of Law
Standard of Review
This Court reviews the final decision of the SSA to determine whether substantial
evidence supports that agency’s findings and whether it applied the correct legal standards.
Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 833 (6th Cir. 2016). Substantial evidence means
Also known as pseudogout is a form of arthritis characterized by sudden, painful swelling in one or more of your
joints. These episodes can last for days or weeks. The most commonly affected joint is the knee. Pseudogout, Mayo
Clinic found at http://www.mayoclinic.org/diseases-conditions/pseudogout/basics/definition/con-20028152 (last
“‘more than a mere scintilla’ but less than a preponderance; substantial evidence is such ‘relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Id. (quoting
Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001)). In determining whether substantial
evidence supports the agency’s findings, a court must examine the record as a whole, “tak[ing]
into account whatever in the record fairly detracts from its weight.” Brooks v. Comm’r of Soc.
Sec., 531 F. App’x 636, 641 (6th Cir. 2013) (quoting Garner v. Heckler, 745 F.2d 383, 388 (6th
Cir. 1984)). The agency’s decision must stand if substantial evidence supports it, even if the
record contains evidence supporting the opposite conclusion. See Hernandez v. Comm’r of Soc.
Sec., 644 F. App’x 468, 473 (6th Cir. 2016) (citing Key v. Callahan, 109 F.3d 270, 273 (6th Cir.
Accordingly, this court may not “try the case de novo, resolve conflicts in evidence, or
decide questions of credibility.” Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir.
2012) (quoting Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007)). Where, however, an ALJ
fails to follow agency rules and regulations, the decision lacks the support of substantial
evidence, “even where the conclusion of the ALJ may be justified based upon the record.”
Miller, 811 F.3d at 833 (quoting Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 722 (6th Cir.
The Five-Step Inquiry
The claimant bears the ultimate burden of establishing an entitlement to benefits by
proving his or her “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A). The claimant’s “physical or mental impairment” must
“result from anatomical, physiological, or psychological abnormalities which are demonstrable
by medically acceptable clinical and laboratory diagnostic techniques.” Id. § 423(d)(3). The SSA
considers a claimant’s case under a five-step sequential evaluation process, described by the
Sixth Circuit Court of Appeals as follows:
1) A claimant who is engaging in substantial gainful activity will not be found to be
disabled regardless of medical findings.
2) A claimant who does not have a severe impairment will not be found to be
3) A finding of disability will be made without consideration of vocational factors, if
a claimant is not working and is suffering from a severe impairment which meets
the duration requirement and which meets or equals a listed impairment in
Appendix 1 to Subpart P of the Regulations. Claimants with lesser impairments
proceed to step four.
4) A claimant who can perform work that he has done in the past will not be found
to be disabled.
5) If a claimant cannot perform his past work, other factors including age, education,
past work experience and residual functional capacity must be considered to
determine if other work can be performed.
Parks v. Soc. Sec. Admin., 413 F. App’x 856, 862 (6th Cir. 2011) (citing Cruse v. Comm’r of
Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007)); 20 C.F.R. §§ 404.1520, 416.920. The claimant
bears the burden through step four of proving the existence and severity of the limitations her
impairments cause and the fact that she cannot perform past relevant work; however, at step five,
“the burden shifts to the Commissioner to ‘identify a significant number of jobs in the economy
that accommodate the claimant’s residual functional capacity . . . .” Kepke v. Comm’r of Soc.
Sec., 636 F. App’x 625, 628 (6th Cir. 2016) (quoting Warner v. Comm’r of Soc. Sec., 375 F.3d
387, 390 (6th Cir. 2004)).
The SSA can carry its burden at the fifth step of the evaluation process by relying on the
Medical-Vocational Guidelines, otherwise known as “the grids,” but only if a nonexertional
impairment does not significantly limit the claimant, and then only when the claimant’s
characteristics precisely match the characteristics of the applicable grid rule. See Anderson v.
Comm’r of Soc. Sec., 406 F. App’x 32, 35 (6th Cir. 2010); Wright v. Massanari, 321 F.3d 611,
615–16 (6th Cir. 2003).
Otherwise, the grids only function as a guide to the disability
determination. Wright, 321 F.3d at 615–16; see also Moon v. Sullivan, 923 F.2d 1175, 1181 (6th
Cir. 1990). Where the grids do not direct a conclusion as to the claimant’s disability, the SSA
must rebut the claimant’s prima facie case by coming forward with proof of the claimant’s
individual vocational qualifications to perform specific jobs, typically through vocational expert
testimony. Anderson, 406 F. App’x at 35; see Wright, 321 F.3d at 616 (quoting SSR 83-12,
1983 WL 31253, *4 (Jan. 1, 1983)).
When determining a claimant’s residual functional capacity (“RFC”) at steps four and
five, the SSA must consider the combined effect of all the claimant’s impairments, mental and
physical, exertional and nonexertional, severe and nonsevere. 42 U.S.C. §§ 423(d)(2)(B), (5)(B);
Glenn v. Comm’r of Soc. Sec., 763 F.3d 494, 499 (6th Cir. 2014) (citing 20 C.F.R.
Plaintiff’s Statement of Errors
As her first claim of error, Plaintiff alleges that the ALJ’s finding that her Bartter
syndrome was not a severe impairment is not supported by substantial evidence. Plaintiff argues
that her Bartter syndrome was a severe impairment and she points to laboratory testing showing
low, and occasionally, dangerously low, potassium levels from August 3, 2011, through
September 17, 2012. Additionally, Plaintiff argues that the evidence that she was noncompliant
with prescribed treatment preceded the disability onset date and, since that time, there is no
evidence in the record to establish that Plaintiff has been noncompliant. Defendant responds that
the medical evidence does not support any significant long-term work-related limitations
stemming from Plaintiff’s Bartter Syndrome. Additionally, Defendant argues that other than
Plaintiff’s daily medication regimen, there is little evidence that Plaintiff received any treatment
that her physician visits were almost entirely routine medication refills or brief visits to check her
potassium levels, and that at the vast majority of Plaintiff’s physician visits there was no
indication that Plaintiff had any muscle cramping or weakness.
The SSA defines non-severe impairments as:
(a) [a]n impairment or combination of impairments [that] does not
significantly limit your physical or mental ability to do basic work activities.
(b) Basic work activities. When we talk about basic work activities, we
mean the abilities and aptitudes necessary to do most jobs. Examples of these
(1) Physical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling;
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering simple
(4) Use of judgment;
(5) Responding appropriately to supervision, co-workers and
usual work situations; and
(6) Dealing with changes in a routine work setting.
20 C.F.R. § 404.1521.
Plaintiff has the burden of proving that her impairments are severe. Higgs v. Bowen, 880
F.2d 860, 863 (6th Cir. 1988.) To do so, Plaintiff must offer
objective medical evidence from an acceptable medical source that shows you
have a medical impairment(s) which could reasonably be expected to produce the
. . . symptoms alleged and that, when considered with all of the other evidence
(including statements about the intensity and persistence of your . . . symptoms
which may reasonably be accepted as consistent with the medical signs and
laboratory findings), would lead to a conclusion that you are disabled.
20 C.F.R. §404.1529(a). Moreover, Plaintiff’s symptoms
such as pain, fatigue, shortness of breath, weakness, or nervousness, will not be
found to affect your ability to do basic work activities unless medical signs or
laboratory findings show that a medically determinable impairment(s) is present.
Medical signs and laboratory findings, established by medically acceptable
clinical or laboratory diagnostic techniques, must show the existence of a medical
impairment(s) which results from anatomical, physiological, or psychological
abnormalities and which could reasonably be expected to produce the pain or
other symptoms alleged.
20 C.F.R. § 404.1529(b).
As the ALJ noted, the earliest medical records in evidence after the June 23, 2011, 7 onset
date are from Plaintiff’s August 1, 2011, visit to United Neighborhood Health Service (“UNHS”)
where she was seen by Family Nurse Practitioner (“FNP”) Brian F. Richey. (Tr. 298-304.) At
this appointment Plaintiff completed a patient questionnaire which asked whether, over the last
two weeks, Plaintiff had experienced any of a list of problems, which included, “feeling tired or
having little energy,” “trouble concentrating on things, such as reading the newspaper or
watching television,” and “moving or speaking so slowly that other people could have noticed.”
(Tr. 298.) Plaintiff checked “not at all” in response to every question. (Id.) Plaintiff was
examined by FNP Richey who noted that “[s]he has a rare genetic condition called Bartter’s
Syndrome where she [has] chronic[ally] low potassium and magnesium levels unless
The ALJ also considered Plaintiff’s pre-disability onset medical records, largely from visits with Williams J.
Littman. M.D., in coming to her determination that Plaintiff’s Bartter syndrome was not a severe impairment. (Tr.
15.) Post-disability onset, Plaintiff saw Dr. Littman two more times; once in July, 2011, at which time he noted that
Plaintiff had “no insurance” and “no job,” and once in September, 2011, to complete Plaintiff’s disability
paperwork. (Tr. 217-18.)
supplemented.” (Tr. 299 (emphasis added).) He conducted a “systems review” and noted that
Plaintiff did not complain of fatigue, and all other systems were normal. (Id.) FNP Richey also
conducted a physical examination in which, as the ALJ recognized, he noted that Plaintiff had
“no motor weakness,” her “balance and gait [were] intact,” her “coordination [was] intact” and
“[n]eurologically, she was unremarkable. (Tr. 15, 300.) FNP Richey ordered lab tests which
showed that, despite Plaintiff’s normal systems review and physical examination, and despite
Plaintiff’s denial that she was experiencing fatigue or weakness, Plaintiff’s potassium level was
low at 2.7 mmol/L. 8 (Tr. 297.) FNP Richey ordered additional lab testing that reflected that on
August 3, 2011, Plaintiff’s potassium level was normal at 3.9 mmol/L. (Tr. 296), and on
September 13, 2011, Plaintiff’s potassium level was slightly below normal at 3.3 mmol/L. (Tr.
There are no records in evidence demonstrating that Plaintiff visited the UNHS, or any
other medical provider between September 13, 2011, and April 10, 2012, except for a visit to the
emergency room at University Medical Center (“UMC”) on December 30, 2012, when Plaintiff
was admitted overnight with gastroenteritis. Plaintiff’s gastroenteritis caused her to have a
dangerously low potassium level because she was unable to take her medication. (Tr. 280-84.)
She was given intravenous potassium and released the following evening. (Tr. 280.) Despite
having such a low potassium level, Plaintiff denied “any palpitations, chest pain or syncope.”
(Tr. 282.) UMC records note that Plaintiff “was last hospitalized here several years ago with
nausea and vomiting at that time.” (Tr. 282.) Plaintiff denied any cardiac history, and upon
examination she had a normal heart rate and rhythm. (Tr. 282-83.)
The normal range for blood potassium levels is 3.5 to 5.2 mmol/L. See Low Potassium (Hypokalemia) located at
http://www.emedicinehealth.com/low_potassium/article_em.htm (last visited on 5/15/17).
As the ALJ noted, from April, 2012 through December, 2012, 9 Plaintiff visited UNHS
six times and was seen by Michael J. Antanaitis, Certified Physician Assistant (“PA-C”). (Tr.
16, 319-37.) These appointments were generally for the purpose of a check-up, medication
refills or lab tests. (See id.) On April 5, 2012, Plaintiff saw PA-C Antanaitis for a check-up and
for a refill of her medications. (Tr. 333.) Although Plaintiff’s physical examination was normal,
including her heart rate and rhythm, and her balance and gait, Plaintiff reported that she was
fatigued and lethargic and that she was experiencing generalized weakness and malaise. (Tr.
334.) However, within a few days of this visit, Plaintiff’s potassium level was normal at 4.2
mmol/L. (Tr. 289.) Plaintiff saw PA-C Antanaitis on June 4, 2012, for refills of her medication.
(Tr. 330.) At this visit, Plaintiff again complained of generalized weakness, fatigue and lethargy,
and again the results of her physical examination were normal. (Tr. 330-32.) The record does
not contain any lab results from this visit.
Plaintiff next saw PA-C Antanaitis on July 26, 2012 for lab work and a refill on her
medications. (Tr. 327.) At this visit, Plaintiff physical examination was normal and she did not
report any fatigue, generalized weakness, or lethargy. (Tr. 328.) Notably, her lab results from
this visit reflect a potassium level of 3.1 mmol/L., somewhat lower than the normal. (Tr. 337.)
On August 27, 2012, Plaintiff saw PA-C Antanaitis for five minutes for a “labs only” visit,
however the record does not contain the results of these lab tests. (Tr. 325-26.) Plaintiff saw
In a Medical Source Statement, PA-C Antanaitis stated that he treated Plaintiff from August 1, 2011 through
March 4, 2013, and possibly thereafter. The record, however, does not contain any evidence of Plaintiff’s visits the
UNHS or any other clinic for treatment after December, 2012. When asked by the ALJ at the May 2, 2013, hearing
whether Plaintiff had any additional medical records to admit into evidence, Plaintiff’s counsel replied: “No, your
honor.” (Tr. 30.) Plaintiff’s insured status did not expire until December 31, 2015 (Tr. 13), thus the ALJ was free to
consider any additional evidence Plaintiff might have offered at or before the hearing. See Carey v. Astrue, No. 11cv-11010, 2012 WL 1564692, at *6 (E.D. Mich. Apr. 11, 2012), report and recommendation adopted sub nom.
Carey v. Comm’r of Soc. Sec., No. 11-11010, 2012 WL 1560475 (E.D. Mich. May 2, 2012) (noting that “while the
ALJ generally only considers evidence from the alleged disability onset date through the date last insured, he may
also consider later evidence to the extent it relates back the claimant’s condition during the relevant period.”)
PA-C Antanaitis on September 10, 2012, complaining of “a sudden onset right foot weakness
with diminished ability to dorsiflex her right foot.” 10 (Tr. 322.) Plaintiff stated that she had
“never had this before” and that she fell last week as a result of this right foot weakness.
However, Plaintiff had no “back, leg, foot, or ankle pain” or “myalgia.” 11 (Tr. 322-23.) Plaintiff
also noted that she had some “left calf cramping last week.” (Tr. 322.) PA-C Antanaitis
examined Plaintiff’s extremities and all four were unremarkable with full range of motion,
except that Plaintiff’s right foot had “passive ROM full.”
commented that Plaintiff had “no weakness of [right] thigh/knee dorsiflexion, but weakness of
[right] foot dorsiflexion strength.” (Id.) PA-C Antanaitis directed Plaintiff to increase her
potassium supplementation to one tablespoon five times a day and she was instructed to return in
one week to have her potassium level checked. (Tr. 323.) On September 17, 2012, Plaintiff’s
lab tests reflected a normal potassium level at 3.8 mmol/L. (Tr. 336.)
Plaintiff saw PA-C Antanaitis again on December 17, 2012, for a check-up, refills on her
medications and lab work, however the record does not contain the results of these lab tests. At
this visit, PA-C Antanaitis noted that Plaintiff was “[n]egative for change in appetite,
chills/rigors, decreased activity, fatigue, fever, generalized weakness, increased appetite,
irritability, lethargy, malaise, night sweats, and weight loss.” (Tr. 320.) Additionally, although
PA-C Antanaitis noted that Plaintiff was suffering from “frequent urination, nocturia, urgency,
Dorsiflexion means “flexion of the foot in an upward direction.” “Dorsiflexion.” Merriam-Webster.com. located
at https://www.merriam-webster.com/medical/dorsiflexion (last visited 5/16/17).
Myalgia is pain in one or more muscles. “Myalgia.” Merriam-Webster.com located at https://www.merriamwebster.com/dictionary/myalgia (last visited 5/16/17).
and urinary incontinence,” she was negative for “back pain, change in urine color hematuria or
polyuria.” (Id.) 12 The remainder of Plaintiff’s physical examination was normal. (Tr. 321.)
As the ALJ found, Plaintiff’s medical records suggest that her Bartter syndrome was
controllable with regular and consistent supplementation. (Tr. 15-18.) Additionally, the record
does not contain any medical evidence to suggest that Plaintiff ever suffered from any
“functional cardiac abnormalities secondary to potassium imbalance,” a consequence of Bartter’s
Syndrome according to Plaintiff, (Doc. 14 at Page ID# 375), or any other related complications,
such as heart or blood problems. See e.g., Arnold v. Autozone, Inc., No. CV 13-1329, 2016 WL
807805, at *3 (E.D. Pa. Mar. 2, 2016) (noting that Plaintiff “suffers from Bartter’s Syndrome
which affects his kidney functioning and causes related complications to his heart and blood”
and that “[d]ue to his medical condition, [Plaintiff] took a leave of absence to have open heart
surgery”); McCutcheon v. Hartford Life & Acc. Ins. Co., No. CV 08-04808 RGK (SHX), 2009
WL 1971427, at *1 n.2, *4 (C.D. Cal. July 1, 2009) (noting that “Bartter’s Syndrome is an
inherited defect in the renal tubules that causes low potassium levels (hypokalemia), low chloride
levels, which in turn causes metabolic alkalosis” 13 and that complications of hypokalemia
include muscle weakness, syncope, or arrhythmias).
The ALJ considered Plaintiff’s testimony regarding the effects of her Bartter Syndrome
on her ability to work and found that her testimony “concerning functional limitations and
Nocturia mean “urination at night especially when excessive.” “Nocturia.” Merriam-Webster.com. located at
https://www.merriam-webster.com/medical/nocturia (last visited 5/16/17) Hematuria means “the presence of blood
or blood cells in the urine.”
“Hematuria.” Merriam-Webster.com located at https://www.merriamwebster.com/dictionary/hematuria (last visited 5/16/17.) Polyuria means “excessive secretion of urine.” “Polyuria.”
Merriam-Webster.com located at https://www.merriam-webster.com/dictionary/polyuria (last visited on 5/16/17).
Metabolic Alkalosis “is caused by too much bicarbonate [base or alkali] in the blood. A condition in which the
body fluids have excess base (alkali). “Alkalosis” found at https://medlineplus.gov/ency/article/001183.htm (last
visited 5/17/17). Symptoms include “confusion, hand tremor, lightheadedness, muscle twitching, nausea, vomiting,
numbness or tingling in the face, hands or feet and prolonged muscle spasms (tetany).” (Id.)
extreme fatigue is inconsistent with the medical evidence.” (Tr. 17.) Given the relative paucity
of medical evidence, Plaintiff’s generally normal physical examinations; the lack of any
evidence of substantial complications as a result of Plaintiff’s Bartter syndrome; the lack of
correlation between Plaintiff’s reports of fatigue and weakness with low potassium levels; and
Plaintiff’s inconsistent reporting of symptoms of fatigue, weakness, or lethargy; the ALJ
appropriately determined that Plaintiff’s dire testimony about the impact of her Bartter syndrome
was not entirely credibly. 14
The ALJ considered the opinions of Plaintiff’s treating medical providers Dr. Littman
and PA-C Antanaitis. Plaintiff saw Dr. Littman from 2007-2011, prior to her disability onset
date. While under Dr. Littman’s care, Plaintiff acknowledged that she was not consistently
taking her prescribed medication (Tr. 219, 221), that she had a bad attitude toward her work, and
that her work was stressful and was “driving her crazy” (Tr. 219-27.) Notably, many of
Plaintiff’s visits with Dr. Littman related to her mental health issues (219-23, 226-27) or
conditions entirely unrelated to her Bartter syndrome, for example, menopause (Tr. 223) and left
shoulder pain after a fall (Tr. 224). On December 15, 2011, several months after Dr. Littman had
last examined Plaintiff, Dr. Littman filled out a Physical Capacity Evaluation form in which he
opined that Plaintiff had “standing, walking, sitting, and postural limitations.” (Tr. 278.)
Nevertheless, he remained uncertain as to the impact these limitations might have on Plaintiff’s
ability to work. (Id.) After reviewing the medical records in evidence from Plaintiff’s treatment
with Dr. Littman and after considering Dr. Littman’s opinion, the ALJ found that Dr. Littman’s
opinion regarding Plaintiff’s physical limitations was not supported by clinical or laboratory
findings and gave it little weight. (Tr. 17.)
Plaintiff’s claim of error regarding the ALJ’s credibility finding is discussed below.
With respect to PA-C Antanaitis, who was not an “acceptable medical source,” 15 he
opined that Plaintiff had significant work-related limitations because of “fatigue associated with
hypokalemia.” (Tr. 316-18.) However, having reviewed all the medical records from Plaintiff’s
six visits with him, the ALJ found that the limitations suggested by PA-C Antanaitis “were
overly restrictive based upon the entire medical evidence of record.” (Tr. 17.) Indeed, PA-C
Antanaitis’ opinion regarding Plaintiff’s limitations was far more restrictive than the opinion of
Dr. Littman, who was an “acceptable medical source.” As will be discussed further below, the
ALJ did not err in concluding that the opinions of Dr. Littman and PA-C Antanaitis with regard
to the limitations caused by Plaintiff’s Bartter syndrome were entitled to little weight.
Based on the foregoing, substantial evidence supported the ALJ’s determination that
Plaintiff’s Bartter Syndrome was not a severe impairment. Even assuming arguendo, however,
that the ALJ erred in not finding that Plaintiff’s Bartter syndrome was a severe impairment, such
error was harmless under the circumstances present here because in determining Plaintiff’s RFC,
the ALJ considered all of her impairments, severe and non-severe, and completed the sequential
evaluation process. See Maziarz v. Sec’y, 837 F.2d 240, 244 (6th Cir. 1987) (finding that the
ALJ considered the limiting effects of all severe and non-severe impairments as a whole, the
ALJ’s failure to label a non-severe impairment as “severe” was, at worst, harmless error);
McGlothin v. Comm’r, 299 F. App’x. 516, 522 (6th Cir. 2008) (finding that it is “legally
irrelevant” that the ALJ found an impairment to be non-severe because the ALJ acknowledged
the presence of other severe impairments and completed the evaluation process). The ALJ noted
that she crafted Plaintiff’s RFC “after careful consideration of the entire record.” (Tr. 19.) She
Acceptable medical sources” include, among others, licensed physicians and licensed or certified psychologists.
20 C.F.R. § 404.1513(a). “Other sources” include medical sources who are not “acceptable” and almost any other
individual able to provide relevant evidence. 20 C.F.R. § 404.1513(d).
noted that in making her RFC finding, she was required to “consider all of the claimant’s
impairments, including impairments that are not severe,” 16 that she “considered all symptoms
and the extent to which these symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence.” (Id.) She also considered Plaintiff’s testimony
at the hearing regarding Plaintiff’s perceived physical limitations, and noted that Plaintiff’s
“medically determinable impairments could reasonably be expected to cause the alleged
symptoms, however, [Plaintiff’s] statements concerning the intensity, persistence, and limiting
effects of these symptoms are not entirely credible. . . .” (Tr. 21.) As such, even if the ALJ
should have found that Plaintiff’s Bartter syndrome was a severe impairment, her failure to do so
was harmless because the ALJ considered Plaintiff’s Bartter syndrome, and all other medically
determinable impairments, in moving through the sequential evaluation process and crafting
Plaintiff’s RFC. See Fisk v. Astrue, 253 F. App’x. 580, 584 (6th Cir. 2007) (finding harmless
error where the ALJ “‘considered limitations and restrictions imposed by all of [Plaintiff’s]
impairments,’ including his non-severe impairments”).
As her second claim of error, Plaintiff argues that the ALJ did not evaluate medical
opinion evidence consistent with Sixth Circuit precedent or the Social Security regulations.
Specifically, Plaintiff alleges that the ALJ erred: (1) in not giving Dr. Littman’s opinion
controlling weight and in failing to sufficiently explain why Dr. Littman’s opinion was not
entitled to controlling weight; (2) in not giving PA-C Antanaitis’ opinion substantial weight and
failing to sufficiently explain why; and (3) in improperly giving greatest weight to the opinions
Citing 20 C.F.R. § 404.1545, which provides that “[w]e will consider all of your medically determinable
impairments of which we are aware, including your medically determinable impairments that are not ‘severe’” and
SSR 96-8p, which provides that “[i]n assessing RFC, the adjudicator must consider limitations and restrictions
imposed by all of an individual’s impairments, even those that are not ‘severe.’” SSR 96-8p, 1996 WL 374184, at *
5 (July 2, 1996).
of non-treating, non-examining, sources, Frank Pennington, M.D., and Marvin Cohn, M.D. 17 In
opposition, Defendant claims that substantial evidence supports the ALJ’s RFC finding and notes
that the ALJ assigned little weight to the opinions of Dr. Littman and PA-C Antanaitis because
the evidence in the record did not support the level of limitation described in their opinions.
Social security regulations and rulings establish the framework for the ALJ’s
consideration of medical opinions.
See 20 C.F.R. §§ 404.1527, 416.927; SSR 96-2p.
Acceptable medical sources are divided into three categories: treating sources, examining but
non-treating sources; and non-examining sources. As explained above, a treating source “means
your own acceptable medical source who provides you, or has provided you, with medical
treatment or evaluation” consistent with accepted medical practice, and “who has, or has had, an
ongoing treatment relationship with you.”
20 C.F.R. § 404.1527.
An examining, but
“nontreating source . . . has examined the claimant but does not have, or did not have, an
ongoing treatment relationship with h[im].” Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 875
(6th Cir. 2007) (internal citation and quotation marks omitted). A “nonexamining source is a
physician, psychologist, or other acceptable medical source who has not examined [the claimant]
but provides a medical or other opinion in [the claimant’s] case.” Id. (internal citation and
quotations marks omitted).
“When evaluating medical opinions, the SSA will generally give more weight to the
opinion of a source who has examined [the claimant] than to the opinion of a source who has not
examined her].” Id. (internal citations and quotations marks omitted). However, the SSA is only
required to “give good reasons in [its] notice of determination or decision for the weight [it gives
Because Plaintiff does not take issue with the ALJ’s examination of the mental health opinion evidence, those
opinions are not discussed here.
the claimant’s] treating source’s opinion.” Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 514 (6th
Cir. 2010) (internal citation omitted). Indeed, the Sixth Circuit has long held that the that “the
regulation requiring an ALJ to provide ‘good reasons’ for the weight given a treating physician’s
opinion does not apply to an ALJ’s failure to explain his favoring of one non-treating source’s
opinion over another.” Wright v. Colvin, No. 1:15-cv-01931, 2016 WL 5661595, at *9 (N.D.
Ohio Sept. 30, 2016) (citing Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 506-07 (6th
Cir. 2006). Likewise, the ALJ is “under no special obligation” to provide great detail as to why
the opinions of the nonexamining providers “were more consistent with the overall record” than
the examining, but nontreating providers. Norris Comm’r of Soc. Sec., 461 F. App’x 433, 440
(6th Cir. 2012).
As long as “the ALJ’s decision adequately explains and justifies its
determination as a whole, it satisfies the necessary requirements. . . .” Id.
The ALJ amply explained why she accorded the opinions of nonexamining sources, Drs.
Pennington and Cohn, greater weight than the opinions of treating sources, Dr. Littman and PAC Antanaitis. As noted above, Dr. Littman submitted a “Physical Capacity Evaluation” form.
(Tr. 278.) This document is a “check-off form” with room at the bottom for comments. (Id.)
Dr. Littman endorsed a variety of restrictions, including prohibitions against squatting, climbing
or stooping, and sitting, walking and standing limitations. (Id.) Dr. Littman did not offer any
comments or explanations to support the limitations that he checked on the form. (Id.) Notably,
when asked whether Plaintiff could work an 8 hour day and the number of breaks Plaintiff might
require in an 8 hour day, Dr. Littman responded, “uncertain,” and where the form asked if
Plaintiff would need to lie down or put her feet up during the work day he responded, “no.” (Id.)
As the ALJ noted, the medical evidence in the record, and in particular, Dr. Littman’s own
treatment records, did not support the limitations he endorsed. (Tr. 17.)
As explained above, most of Plaintiff’s visits with Dr. Littman concerned her mental
health issues or injuries unrelated to her Bartter syndrome. (Tr. 217-23.) Additionally, where
Dr. Littman did note information about Plaintiff’s Bartter syndrome, that information related to
admonishing Plaintiff for being non-compliant with, and failing to consistently take, her
potassium medication. (Tr. 219, 221.) Moreover, Dr. Littman endorsed limitations that do not
appear to be based on impairments he identified or treatment he provided to Plaintiff. For
example, Dr. Littman endorsed squatting, climbing, and stooping limitations, but his treatment
notes fail to substantiate functional limitations related to Plaintiff’s hips, knees, or back.
Likewise, Dr. Littman noted that in an 8 hour work day, Plaintiff could sit for 6 hours, stand for
3 hours, and walk for 4 hours, but again there are no treatment notes to support these limitations
and Dr. Littman does not explain what evidence prompted him to endorse these limitations. As
such, and based on the record evidence, the ALJ did not err in giving little weight to Dr.
Littman’s opinion, contained in the Physical Capacity Evaluation “check-off form.” See Ellars v.
Comm’r of Soc. Sec., 647 F. App’x 563, 566-67 (6th Cir. 2016) (finding that ALJ did not err in
not giving significant weight to treating physician opinion where the opinion consisted of a twopage Physical Capacity Evaluation form, without any explanation or citation to clinical test
results, observations, or other objective findings); Rogers v. Comm’r of Soc. Sec., No. 99–5650,
2000 WL 799332 (6th Cir. June 9, 2000) (treating physician’s documentation of impairments on
form with checked-off boxes was not entitled to great weight when no further explanation
given); see also 20 C.F.R. § 404.1527(c)(3)(“The better an explanation a source provides for an
opinion, the more weight we will give that opinion.”)
PA-C Antanaitis also did not support the limitations he set out in the Medical Source
Statement “check-off form” with any objective medical evidence.
Antanaitis opined, by checking the appropriate box, that Plaintiff could not work, that she would
need to lie down during the work day, and that she had difficulty concentrating, remaining
attentive, and following or remembering directions. (Id.) Additionally, PA-C Antanaitis opined
that Plaintiff could stand or walk for a total of 3 hours, that sitting was not impacted by
Plaintiff’s impairment, and that Plaintiff would have to rest for 2 hours during an 8 hour work
day. (Id.) PA-C Antanaitis noted reaching, pushing, and pulling as physical limitations and he
endorsed the following environmental restrictions: heights, moving machinery, temperature
extremes, chemicals, dust, fumes, humidity, and vibration, although he did not endorse a noise
restriction. PA-C Antanaitis explained that he endorsed such a wide-range of restriction based
on Plaintiff’s fatigue associated with hypokalemia. (Id.) He elaborated that “hypokalemia
causes balance, fatigue, and muscle cramping issues, along with dizziness.” (Tr. 318.) As the
ALJ noted, the limitations identified by PA-C Antanaitis “were overly restrictive based upon the
entire medical evidence of record.” (Tr. 17.)
As explained above, throughout Plaintiff’s treatment with PA-C Antanaitis, her reports of
weakness and fatigue, often did not match with lab results showing low potassium. (See e.g., Tr.
336-37.) Additionally, at several visits, in particular after PA-C Antanaitis increased Plaintiff’s
potassium dosage, Plaintiff reported no weakness or fatigue. (Tr. 320, 328.) Little, if anything,
in PA-C Antanaitis treatment notes suggest that Plaintiff had any difficulty with balance, except
for the single exceptional visit in which Plaintiff experienced right foot weakness which was
resolved after PA-C Antanaitis increased Plaintiff’s potassium prescription.
Likewise, nothing in the medical records supports the reaching, pushing, and pulling restrictions,
or environmental restrictions that PA-C Antanaitis identified. Indeed, Dr. Littman opined that
Plaintiff had few of the restrictions that PA-C Antanaitis identified. (Compare Tr. 278, 315-18.)
Looking at the record as a whole, there was ample evidence to support the ALJ’s decision
to give little weight to PA-C Antanaitis opinion because it was not supported by the objective
medical evidence. Moreover, the ALJ adequately explained her reasoning for giving PA-C
Antanaitis opinion little weight, but even if she did not, SSA rules only required that she “ensure
that the discussion of the evidence in the determination or decision allows a claimant or
subsequent reviewer to follow [her] reasoning. SSR 06-03P, 2006 WL 2329939 (Aug. 9, 2006)
The ALJ carefully considered PA-C Antanaitis treatment notes and his Medical Source
Statement, before determining that PA-C Antanaitis’s opinion was entitled to little weight. The
ALJ sufficiently fulfilled her obligations. (Tr. 16-17.)
With respect to the ALJ’s decision to give great weight to the opinions of Drs.
Pennington and Cohn, the ALJ explained that neither Dr. Pennington nor Dr. Cohn found that
Plaintiff had severe physical impairments and she concluded that their “opinions are consistent
with the medical evidence, which does not support severe physical limitations of the claimant.”
Moreover, she noted that Dr. Cohn opinioned that Plaintiff’s compliance with
potassium replacement would be expected to improve her condition. (Tr. 18, 276.) The ALJ did
not err in crediting the opinions of Drs. Pennington and Cohn, where, as here, the medical
evidence of record supported their opinions and failed to support the opinions of the treating
providers. See Norris, 461 F. App’x at 439 (explaining that “[a]ny record opinion, even that of a
treating source, may be rejected by the ALJ when the source’s opinion is not well supported by
medical diagnostics or if it is inconsistent with the record”).
As her third claim of error, Plaintiff argues that the ALJ’s finding that she could perform
jobs identified by the VE is not supported by substantial evidence. This argument is based on the
ALJ failure to properly credit Dr. Littman’s and PA-C Antanaitis’ opinion regarding Plaintiff’s
limitations. Specifically, Plaintiff claims that the ALJ failed to present, in her hypotheticals to
the VE, all of the limitations identified by Dr. Littman and PA-C Antanaitis. However, in
crafting hypothetical questions, the ALJ only need incorporate those limitations that she finds
credible and well supported by the medical evidence as a whole. See Winslow v. Somm’r of
Soc. Sec., 566 F. App’x 418, 421 (6th Cir. 2014) (noting that the “record reflects . . . that the
hypothetical questions were proper because the ALJ incorporated all of the functional limitations
that she deemed credible”). Moreover, the ALJ may omit from her hypothetical question, any
non-severe impairments. See Griffiths v. Comm’r of Soc. Sec., 582 F. App’x 555, 565 (6th Cir.
2014) (finding that because Plaintiff’s impairment “was not determined to be ‘severe,’ the ALJ
was not required to reference it in his hypothetical question” to the VE). The ALJ framed
appropriate hypothetical questions based on limitations she found credible and, as such, she was
entitled to rely on the VE’s testimony that Plaintiff could perform her past work. See Anderson
v. Comm’r of Soc. Sec., 406 F. App’x 32, 35 (6th Cir. 2010) (noting that [a]s long as the VE’s
testimony is in response to an accurate hypothetical, the ALJ may rely on the VE’s testimony to
find that the claimant is able to perform a significant number of jobs”).
As her fourth claim of error, Plaintiff argues that the ALJ did not adequately explain the
basis of her finding on Plaintiff’s credibility. The ALJ, not the court system, is tasked with
evaluating a witness’ credibility; credibility findings must be “grounded in the evidence and
articulated in the determination or decision.” SSR 96-7P, 1996 WL 374186 at *4 (July 2, 1996);
Rogers v. Commissioner, 486 F.3d 234, 247 (6th Cir. 2007). In addition to the objective
evidence, the ALJ should consider the following factors when assessing the credibility of a
claimant’s statements regarding his symptoms:
The individual’s daily activities;
The location, duration, frequency, and intensity of the individual’s pain or other
Factors that precipitate and aggravate the symptoms;
The type, dosage, effectiveness, and side effects of any medication the individual
takes or has taken to alleviate pain or other symptoms;
Treatment, other than medication, the individual receives or has received for relief
of pain or other symptoms;
Any measures other than treatment the individual uses or has used to relieve pain
or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20
minutes every hour, or sleeping on a board); and
Any other factors concerning the individual’s functional limitations and
restrictions due to pain or other symptoms.
SSR 96-7P, 1996 WL 374186 at * 3. Under SSR 96–7p the ALJ is required to “consider” the
seven listed factors, but there is no requirement that the ALJ discuss every factor. See White v.
Commissioner, 572 F.3d 272, 287 (6th Cir. 2009); see also Coleman v. Astrue, No. 2:09–cv–36,
2010 WL 4094299, at * 15 (M.D. Tenn. Oct. 18, 2010) (finding that “[t]here is no requirement [
] that the ALJ expressly discuss each listed factor”); Roberts v. Astrue, No. 1:09–cv–1518, 2010
WL 2342492, at * 11 (N.D. Ohio June 9, 2010) (finding that “the ALJ need not analyze all seven
factors contained in SSR 96–7p to comply with the regulations”). Nevertheless, the Sixth Circuit
recognizes that meaningful appellate review requires more than a blanket assertion by an ALJ
that “the claimant is not believable.” Rogers, 486 F.3d at 248. The Rogers court observed that
Social Security Ruling 96–7p requires that the ALJ explain his or her credibility determination
and that the explanation “must be sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator gave to the individual's statements and the
reasons for that weight.” Id.
The ALJ considered the factors set forth in SSR 96-7p in her summary of Plaintiff’s
testimony at the hearing. (See Tr. 18-21.) The ALJ noted that Plaintiff engaged in extensive
activities of daily living, including preparing meals and performing household chores such as
cleaning, and doing the laundry and ironing. (Tr. 18.) Additionally, Plaintiff had no problems
with personal care, including dressing herself, caring for her hair and shaving, nor did she have
any difficulty driving. (Id.)
The medical evidence established that Plaintiff’s physical examinations were largely
normal, and she had no motor weakness, her balance and gait were intact, her heart rate and
rhythm were normal, she denied chest pain, palpitations or fainting. (Tr. 319-35.) Moreover,
Plaintiff was admitted to the hospital only one time during the period in question because a bout
of gastroenteritis rendered her unable to take her prescribed medication. (Tr. 17.) 18
The ALJ noted that although Plaintiff was given psychotropic mediation by her primary
care provider, Plaintiff did not see a mental health provider and the record disclosed no treatment
notes or treating sources statements from any mental health providers, except for the agency
After reviewing all of the objective medical evidence and considering Plaintiff’s
testimony in light of such evidence, the ALJ found that Plaintiff’s “testimony concerning about
Although Plaintiff acknowledges that the “treatment” for Bartter syndrome “consists of keeping the blood
potassium at a normal level, which is done primarily by having a diet rich in potassium and taking potassium
supplements, if necessary, (Doc. No. 16 at Page ID# 375-76), she appears to argue that merely having a Bartter
syndrome diagnosis is sufficient to establish disability. This is simply false. As noted above, Bartter syndrome can
result in a number of physiological impairments related to the heart and blood, fainting, arrhythmia, confusion, and
numbness, and Plaintiff does not allege that her Bartter syndrome has caused her to experience any of these
conditions. Rather, Plaintiff contends that her fatigue and weakness are the result of her Bartter syndrome.
However, the evidence in the record establishes that Plaintiff’s reports of fatigue and weakness are inconsistent and
do not always match up with her having low potassium levels, but indeed are also evidence of depression, which the
ALJ found to be a severe impairment. (See e.g. Targum, Steven D., and Maurizio Fava. “Fatigue as a Residual
Symptom of Depression.” Innovations in Clinical Neuroscience 8.10 (2011): 40–43 located at
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3225130/ (last visited 5/22/17)).
“the intensity, persistence, and limiting effects of [her] symptoms” was not “entirely credible.”
The ALJ’s credibility finding is supported by substantial evidence and she sufficiently
explained the reasoning behind her determination.
Based on the foregoing, the ALJ’s decision that Plaintiff’s mental and physical
impairments were not disabling is supported by substantial evidence on the record as a whole.
Accordingly, the ALJ’s decision will be affirmed.
In light of the foregoing, Plaintiff’s Motion for Judgment on the Administrative Record
will be DENIED and the decision of the SSA will be AFFIRMED. An appropriate order is
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE
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